Both parts of the illicit trafficking aggravated felony definition require that the conviction be a felony.  There has been quite a bit of controversy, however, on how to define “felony” in this context.  There are three factors that can contribute to the conclusion that a conviction is a felony conviction: (1) whether the convicting jurisdiction labels the conviction a felony or misdemeanor; (2) the maximum sentence to custody possible for the conviction under the law of the convicting jurisdiction; and (3) the level of the offense if it had been prosecuted in federal court (“hypothetical federal prosecution test”).  See § 10.87, supra.  Counsel must therefore bear in mind the rules of the jurisdiction in which the case arises.  Some of these issues have recently been resolved by the United States Supreme Court.  See § 19.58, infra.

Third Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " ILLICIT TRAFFICKING TEST " FELONY REQUIRED
Thomas v. Attorney General of U.S., 625 F.3d 134 (3d Cir. Oct. 26, 2010) (Because Thomas's convictions were misdemeanors under New York Penal Law, see N.Y. Penal Law 221.40, those convictions cannot, by definition, be aggravated felonies pursuant to the illicit trafficking route.)

AGGRAVATED FELONY " DRUG TRAFFICKING " DISTRIBUTION OF MARIJUANA
Catwell v. Attorney General, 623 F.3d 199 (3d Cir. Oct. 13, 2010) (Pennsylvania conviction of possession with intent to distribute marijuana, in violation of 35 Pa. Stat. Ann. 780-113(a)(30), involved 120.5 grams, which was more than a small amount, so the BIA correctly concluded that the conviction constituted a drug trafficking aggravated felony, disqualifying petitioner from eligibility for cancellation of removal).

Ninth Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING " COCAINE BASE
United States v. Baptist, __ F.3d __, 2011 WL 2150993 (9th Cir. Jun. 2, 2011) (Fair Sentencing Act of 2010, reducing 100-1 disparity in sentencing for crack cocaine, is not retroactive).